Opinion
A23-0947
07-08-2024
State of Minnesota, Respondent, v. Johnnie Lerma, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Paul J. Maravigli, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Hennepin County District Court File No. 27-CR-21-21572
Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Paul J. Maravigli, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Smith, Tracy M., Judge; and Slieter, Judge.
OPINION
SLIETER, JUDGE
In this appeal from an order denying a motion to dismiss following a mistrial, appellant argues that double jeopardy prevents retrial because the district court committed structural error, which provoked the mistrial. Because the district court did not provoke the need for the mistrial, retrial is not barred by double jeopardy, and we affirm.
FACTS
In November 2021, respondent State of Minnesota charged appellant Johnnie Lerma by complaint with third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2020); felony domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2020); and threats of violence in violation of Minn. Stat. § 609.713, subd. 1 (2020).
The case proceeded to a jury trial in May 2022. Jury deliberations began on May 25. The afternoon of May 26, the jury asked, "What are the next steps if the jury cannot come to a unanimous decision for every count/charge?" The district court discussed the question with the parties on the record. They agreed that the district court could tell the jury to continue deliberating and, if the jury could not reach unanimous verdicts, they could revisit how much longer deliberations would last the next day. The district court did so, and the jury continued deliberating until the end of the day.
The next morning, the district court learned that one of the jurors had been in close contact with her husband who had tested positive for COVID-19. The district court discussed the issue with the parties on the record. The district court stated that it would not pressure jurors into reaching unanimous verdicts; it would accept unanimous verdicts that the jury had reached and declare mistrials on those counts for which no unanimous verdict had been reached. The prosecutor agreed with the proposed approach. Defense counsel requested a "mistrial on the entire case." Not knowing whether the jury had reached any unanimous verdicts, the district court stated that it would accept unanimous verdicts "over Mr. Lerma's objection."
The district court informed the jury that it was ending deliberations because one of them had been exposed to COVID-19 and asked the jury foreperson if they had reached unanimous verdicts. The foreperson indicated that they had reached unanimous verdicts on three of the five counts but none of the verdict forms were signed. The district court informed the jury that verdicts are not final until signed, and it stated that it would accept unanimous verdicts and declare mistrials on those counts for which no unanimous verdict had been reached. When asked by a juror for the meaning of a "mistrial," the district court informed the jury that it meant the case would be starting over but with a new jury.
The district court sent the jury to another courtroom to sign any verdict forms on those counts for which it had reached unanimity. After about ten minutes, the jury was brought back into the courtroom. The foreperson indicated that it did not have unanimous verdicts on any of the charged offenses. The district court thanked the jurors for their service and declared a mistrial on all five counts.
After declaring the mistrial, a hearing was scheduled to determine next steps. In January 2023, Lerma moved to dismiss the complaint, claiming prosecution was barred by double jeopardy because the mistrial was induced by judicial misconduct. At a hearing on the motion, defense counsel claimed the purported judicial misconduct was structural error. He alleged that the district court encouraged jurors to continue deliberating after instructing the jury that deliberations were over and wrongly informed the jurors that they could change their vote, which resulted in jurors changing their vote.
The district court denied the motion. Lerma appeals.
DECISION
The Double Jeopardy Clauses of the United States and Minnesota Constitutions guarantee that a person may not be tried twice for the same crime. U.S. Const. amend. V; Minn. Const. art. I, § 7. Jeopardy normally "attaches when the jury has been impaneled and sworn." State v. McDonald, 215 N.W.2d 607, 609 (Minn. 1974). "When mistrial has been declared, 'the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.'" State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (quoting Illinois v. Somerville, 410 U.S. 458, 467 (1973)). "If the defendant requests the mistrial, double jeopardy does not bar a second trial unless government misconduct provoked the mistrial request." State v. Olson, 609 N.W.2d 293, 299 (Minn.App. 2000) (citing State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985)), rev. denied (Minn. July 25, 2000).
"[W]hen a mistrial is declared without the defendant's consent, the manifest necessity standard controls." Long, 562 N.W.2d at 296 (quotation omitted). Manifest necessity is "an objective necessity, apparent not only to the district court but to any reviewing court." State v. Yeboah, 691 N.W.2d 87, 91 (Minn.App. 2005). The declaration of a mistrial due to manifest necessity from a deadlocked jury is entitled to "great deference" on appeal. Id.
Thus, when a mistrial is declared, double jeopardy prevents retrial in two circumstances. First, when the defendant requests a mistrial that was provoked by government misconduct. Second, when the defendant does not consent to a mistrial and the mistrial declaration lacked a manifest necessity.
Lerma requested a "mistrial on the entire case." And, in his motion to dismiss, Lerma claimed double jeopardy barred retrial based on judicial misconduct, stating that the district court "intentionally provoked the mistrial." Because Lerma requested a mistrial, the only issue to consider is whether government (here, the district court) misconduct provoked the mistrial.
Despite requesting a mistrial, Lerma claims that he did not consent to the mistrial. Lerma, however, provides no argument or authority supporting his position that a request for a mistrial is not the same thing as consenting to a mistrial. Nor did he present such an argument at district court. Generally, we will not consider arguments that were not argued before or considered by the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that even constitutional issues are waived if not raised before the district court). We, therefore, decline to consider the claim.
Lerma argues that it was "structural error for the district court to give additional instructions to the jury without notice to or consulting counsel, which resulted in the jury suddenly changing three unanimous verdicts into deadlocks." As an initial matter, we note that the district court did not provide jury instructions without notice to or consultation with counsel. Instead, the district court answered juror questions on the record and in the presence of Lerma and counsel.
Lerma cites no authority to support his argument that structural error applies when a mistrial is declared due to a deadlocked jury. State v. Mims, 235 N.W.2d 381 (Minn. 1975), is the only case Lerma cites involving a structural error that resulted in a reversal without remanding for a new trial and it is easily distinguishable from our facts.
The critical issue identified by Mims is that a judge's uninvited entry into the jury room outside the presence of the defendant and counsel "offends the integrity of the proceedings and risks influencing the jury's decisional process in some degree, however difficult to define or impossible to measure." Id. at 388. Here, the district court judge did not enter the jury room or instruct the jury outside the presence of Lerma and counsel. The procedure-answering juror's questions on the record and in the presence of Lerma and counsel-"entails no risk of impropriety or even the appearance of impropriety." Id. at 387.
Lerma did not object to either of the answers to the juror's questions. This court reviews unobjected-to errors under the plain-error test. State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016); see also Pulczinski v. State, 972 N.W.2d 347, 358 (Minn. 2022) (noting that plain-error review applies to some unobjected-to structural errors, such as a defendant's failure to object to a courtroom closure). "In order to meet the plain error standard, a criminal defendant must show that (1) there was an error, (2) the error was plain, and (3) the error affected the defendant's substantial rights." Myhre, 875 N.W.2d at 804 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).
"An error is plain if it is clear or obvious, which is typically established if the error contravenes case law, a rule, or a standard of conduct." State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). Lerma alleges two errors, neither of which is clear or obvious.
After informing the jury that their duties would be discharged, the foreperson informed the district court that the jury had reached unanimity on three of the counts the previous day. The verdicts, however, were not signed or read into the record.
The first alleged error came when the district court answered a juror's question regarding whether she could change her mind.
JUROR: So since it's not final yet, so can I still change?
THE COURT: You can. The verdict isn't final until it's signed by the foreperson after, you know, polling everyone. And if, yeah -- so that's the point is to go to the courtroom next door and see if you still have a final verdict, and if you don't, you don't.
Lerma claims that, by providing this answer, the district court encouraged jurors to change their votes. His claim, however, assumes that the verdicts were complete when announced by the foreperson. But "a verdict is not final for purposes of double jeopardy simply because it is announced by the jury foreman in open court." State v. Crow, 730 N.W.2d 272, 278 (Minn. 2007). Moreover, "[u]nder Minnesota law, a verdict is not complete unless deliberations are over, the verdict is read in open court, and no dissent is expressed by the jury." Id. If a juror disagrees with a verdict, the verdict is not complete. Minn. Stat. § 631.17 (2022). Because the verdicts were not complete, the jurors were able to change their minds. Id. The district court, therefore, did not plainly err by telling the jury that they were free to change their minds. Webster, 894 N.W.2d at 787 (noting that plain error is typically demonstrated by a violation of caselaw, rule, or standard of conduct).
The second alleged error occurred when, responding to a juror's question, the district court stated that a mistrial meant that the case is "just starting over again but not with you." Lerma claims that the district court's response is akin to the jury instruction rejected in State v. Martin, 211 N.W.2d 765 (Minn. 1973). We are unpersuaded.
In Martin, the supreme court determined that because deadlock is a legitimate end of a trial "it is error to charge the jury that a case must at some time be decided." 211 N.W.2d at 770. The court was concerned that instructing a jury that the case had to be decided would coerce jurors into making rash decisions during deliberations to avoid having their duties passed onto another jury. Id. at 771. In contrast, here the district court did not lead the jury to believe that its failure to reach a unanimous verdict would circumvent its duty as the fact-finder. In fact, the district court had already informed the jury to stop deliberating, and that it would order a mistrial on those counts for which jurors had not reached a unanimous verdict. Thus, unlike Martin, the district court was not telling the jury that its duties would be passed onto another jury to encourage the jury to reach a verdict. Instead, the district court here was simply providing an accurate explanation to a juror's question.
Because Lerma has not shown plain error, we need not consider whether the alleged error impacted his substantial rights. Webster, 894 N.W.2d at 787.
The district court did not err, structurally or plainly, by answering the juror's questions and, therefore, government misconduct did not provoke the need for a mistrial. Olson, 609 N.W.2d at 299. Because Lerma consented to the mistrial and government misconduct did not provoke the mistrial, retrial is not barred by double jeopardy. Id.
Lerma also argues that the mistrial declaration was not manifestly necessary. The record undeniably shows that Lerma requested a mistrial on all counts, and we have already determined that the need for a mistrial was not caused by government misconduct. Olson, 609 N.W.2d at 299. We, therefore, need not address whether the mistrial declaration was manifestly necessary.
Affirmed.